James M. Redwine

Elections

It’s Just A Number

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An ABC News/Washington Post Poll taken Sunday, May 07, 2023 of likely voters in the 2024 Presidential election had 68% of Americans saying Joe Biden is too old to be president next term. The same poll says only 44% think Donald Trump could be too old to serve. Biden is now 80 and Trump is now 76.

Joe Biden is claimed to have a fetish about sniffing the hair of women who are not his wife. Trump is alleged to have sexually assaulted several women to whom he was not married. If the American public’s fascination with sexual activity by characters on TV, in movies and books is considered in the choosing of our political leaders, we can postulate there may be a virility factor in play in choosing between our current and former president.

Apparently, the four-year difference in what will be two octogenarian relics by the end of the next term is of material importance to most voters. Neither old guy is the John F. Kennedy sex symbol he may see himself to be but the public appears to prefer its senility a little more virile, at least by reputation. Of course, it is possible neither Biden nor Trump will be on the ballot in 2024 as some dark horse may yet rush in to take all the perks of the presidency.

Of course, sexuality is only one element of a candidate’s character. We should examine the policies and performance of both Biden and Trump. In that regard, some like Trump’s stance on immigration and some like Biden’s. The same is true on the economy, cultural issues and international relations among many other issues. That is why we have elections and campaigns. But just as the coronation of King Charles III seemed to find the media concentrating on which crowns and robes Charles and Camilla donned as well as which handbag Kate carried as opposed to the substance of Charles’ vision for Great Britain’s future, it will not surprise any of us if the national media miss all the policy differences any of the candidates may have as the media focuses on the titillation of each person’s peccadilloes. Of course, the reason the media will do this is because that is what most of us are interested in. Policy is just so common.

Superannuated lotharios may be past their prime but they are more interesting than policy differences. As for me, Gentle Reader, for personal reasons, I choose to believe either Joey or Donnie or some other codger or even a 35-year-old could serve okay if the only consideration is age. Now whether we happen upon anyone who should lead this great country for the years 2025-2028, well, I must leave that lucky guess to each of you and the fickle folly of fate.

 

The Scarlet Bills

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Congress is demanding a code of ethics for the U.S. Supreme Court. So is the national news media. Congress and the media may not see eye to eye on much but they do agree that the Judicial Branch should be controlled by the Legislative Branch. It appears the ideology of Israel’s Prime Minister Benjamin Netanyahu has infiltrated the American Garden of Eden with a poisoned pome and Congress is champing to chomp.

Congress teaching ethics to the Supreme Court is like Helen of Troy teaching matrimonial loyalty to Hamlet’s mother. If Congress were medical advice providers we might say, “First heal yourselves.” Be that as it may, there is little doubt the Supreme Court could use some ethical lessons. However, as a separate and equal branch of our three-branch democratic republic, I prefer the courts remain independent even if they sometimes teeter on a fulcrum between questionable personal behavior and unquestioned legerdemain. Such cases as Dred Scott in which the one-time slave holder, Chief Justice Roger Taney who did not recuse himself, decided the Negro Dred Scott had no rights that America’s white society was bound by law to recognize come to mind.

No, Congress should not be looking for the log in the eyes of the Supreme Court but should be initiating a Constitutional amendment that would ensure America’s citizens, not a few highly partisan politicians, would have the choice as to who and for what term judges would serve. I do not know, Gentle Reader, if you have read my numerous columns on electing judges to one fairly short term. I only know for sure that Peg read them because I refused to comply with her many varied domestic demands until she did. However, if by some chance you did read them you know my preference is a truly democratic judicial selection process.

Non-partisan elections of competing, qualified judicial candidates for one 10-year term and life-time pensions are my suggestion. Advice on ethics for anyone from our Congress rings hollow.

Insomnia Revisited

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If you, as I, have trouble sleeping, this column should help. You may have read last week’s offering concerning the politicization of our federal courts. As warned in that article, today’s Gavel Gamut will further delve into MSNBC Alex Wagner’s suggestion that the legitimacy of America’s federal courts may be undermined by politics. If so, judicial independence and citizen confidence in our Judicial Branch may suffer.

Article III of the United States Constitution provides Justices of the Supreme Court and any lower federal court judges will be appointed by the President and confirmed by the Senate. The right for a citizen to vote for the President and the two senators from the citizen’s state of residence is the total opportunity Americans have to help select an entire branch of our three-branch government. Only the President and the one hundred senators have the constitutional right and opportunity to help select all federal judges. There are federal magistrates and specialty federal judges, such as bankruptcy referees, that are selected by either the sitting judges or special commissions. There are approximately 250,000,000 American citizens eighteen and over (eligible voters) who are cut out of all these selection procedures. So the power to select an entire branch of our government resides in 101 individuals and a few committees.

Further, when it comes to the Supreme Court, the Circuit Courts of Appeal and the District Courts, all these judges have life-time tenure and can only be removed involuntarily by impeachment. There are currently about 1,731 federal judges as appointed by a president. Since our nation’s founding in 1789, articles of impeachment have been brought against 15 federal judges of whom 8 were convicted. Therefore, the American people, except for a president and 100 senators, have no direct say in selecting or removing our federal judges who serve for life. Yet our Executive and Legislative branches are all subject to the will of the people and presidents may only serve 8 years. Our senators and congresspeople serve either 6 or 2-year terms and are subject to periodic popular, partisan elections.

Our system of federal judicial selection eliminates the populace from any control over an entire branch of our separate and equal three branch democracy. If there ever was justification for this extremely parochial and extremely partisan selection procedure for selecting federal judges, it has outlived its purposes. One hundred and one Americans should not have the power to exclude 250 million of their fellow citizens from helping to configure an entire branch of a democratic government.

A constitutional amendment to Article III may be needed if we are to ensure citizens have the option for input into selecting the extremely powerful federal judges who, already according to virtually every political pundit, legal theorist and media commentator, are the product of a shameful partisan vetting. But we have amended our Constitution 27 times for such things as the right to vote for Blacks and women, so we can do it for such an important right as selecting federal judges. Almost every federal judge whose decisions concern such general issues as guns, abortion, immigration, the environment, national defense, education, health care, public entitlements, infrastructure, interstate commerce, criminal justice, voting rights and water rights among many others, when the judge’s identity becomes public during a case, the judge’s name and his/her appointing president is mentioned. Every federal judge in every controversial case is identified as a Trump appointment, a Biden appointment, an Obama appointment or even a Bush appointment. Often the media will even identify the federal judge involved in a contentious case as a “Trump or Biden, etc.” judge. America no longer labors under a belief that federal judges are not the product of a highly partisan process. Therefore, why eliminate almost all Americans from such a transparent power struggle?

I suggest we amend the Constitution to establish a 10-year one-time term for all federal judges. Our existing federal judges who have already served 10 years would remain until the nearest federal election cycle which would not exceed 2 more years. We should pension out all sitting and future judges with their full salaries and benefits in return for them leaving the branch. Such pensions would cost us far less than we have spent in Ukraine or Iraq and we would be buying something of great value, the right to control our own judicial branch.

If we do not address our growing national internecine warfare over our highly political federal judicial selection process, we risk becoming like those countries where the people lose all confidence in the judicial process over which they have no control or even influence.

 

The World In Ruins

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Photo by Passer-By in Coliseum 2014

Donald Trump has declared he will make a third run for the presidency in 2024. Joe Biden claims he will seek re-election. Several Republicans, Ron DeSantis, Mike Pence, Mike Pompeo, and others are not so secretly hoping lightning strikes them, or maybe strikes Trump. Democrats Gretchen Whitmer, Kamala Harris, Cory Booker, and others are feigning fealty to Biden but may be looking wistfully at the effects of Father Time.

In other words, American politics remains unchanged from the days of Jefferson and Adams. It also has regenerated its tiresome media circus of peeking under tent flaps and salivating at the probability of political gaffs. So, buckle up or just tune out for the next two years. As for me and Peg we have been looking at the past, as the present is just too fractious. So, as the pundits and politicians squabble like infants with dirty diapers, Peg and I have been interested in viewing the ancient ruins that became ruins when the cultures of the past let their tantrums get the better of them.

A couple of years ago we visited Rome and walked around the Coliseum. One gets images of gladiators and emperors who had no thought their pretentious edifice would be a mere pile of rubble one day. Then just last week we visited another ancient fort less than ten miles from our home in the country of Georgia. Georgia claims, according to the book Georgian Folk Traditions and Legends, to be situated at the juncture of Europe and Asia and to “[b]eing the most invaded country on earth.” For example, Russia that is Georgia’s neighbor to the north has most recently invaded Georgia in 2008 and 2014.

Photo by Peg Redwine

However, the fort we visited was built by several conquerors over thousands of years but was constructed in its present form on the orders of Roman Emperors Nero, Pompey, Julius Caesar Tiberius and Hadrian during the era 65 BC to the reign of Constantine, 306-337 AD. The name of the fort is Gonio-Apsaros Fortress and it is an impressive structure with ancient stone guard towers, sewage and water systems and Roman hot baths. Of course, today it is all just remnants of past glory. It is on the outskirts of the resort city of Batumi, Georgia near the shore of the Black Sea and about 3 miles from the Turkish border.

Photo by Peg Redwine

Gonio reminded us of the hauntingly impressive Native American pueblo village at Mesa Verde National Park in Colorado. This extensive cliff city was home to many Native Americans for over 700 years from 600-1300 AD. Was it simply abandoned, and if so, why? But once again we observed an impressive series of homes and a mountain stronghold that now is interesting and beautiful, but not lived in by its creators.

I suppose there are many reasons we enjoy visiting these sites of once vibrant communities gone dormant. The inventive genius of our human ancestors gives one a sense of awe and appreciation for the hard work and perseverance of people who were probably quite similar to us. If we could transport them to modern times or transport us back to their times, everybody would most likely fit right in with just a little movie make-up and a change of clothes.

The conclusion or question that keeps us awake, for example I am writing this at 3:50 a.m., is that just as the country of Georgia has been conquered numerous times (as has Jerusalem by Jews, Muslims and Christians on a revolving basis, and Rome and Greece by Vandals and Visigoths and North and South America by Spanish, English, French and Portuguese invaders) are our ruins going to provide interest to tourists of the future?

Affirmation Finally

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I wrote the first of my over 900 “Gavel Gamut” columns in 1990 at the request of my friend, Jim Kohlmeyer. Jim was the Posey County, Indiana Republican Party Chairman and the owner of the New Harmony Times newspaper (now The Posey County News owned by my friend, Dave Pearce).

Jim had recently purchased the paper and was desperate for filler. He asked me, the Democrat, elected, Posey County Circuit Court Judge, to write a column about “legal topics.” Jim did not care what I wrote. Since 1990 and every week since April of 2005 I have written about topics from local heroes to national issues as I saw fit. As those of you, Gentle Readers, will note, in several of my burnt offerings my wife, Peg, had to bear the brunt of my ramblings. However, most of “Gavel Gamut” has dealt with legal topics. A major theme has been the legal system, particularly judges. The federal courts and especially the United States Supreme Court have been the recipients of my chagrin over these thirty-two years during all of which I have served and am still serving as a judge myself. Although after thirty-eight years on the Bench as a partisan-elected judge I term-limited myself and now serve in other judicial venues, such as the Country of Georgia and the National Judicial College.

As I have written numerous times, my belief is that our American democracy is in danger from non-elected, life-tenured judges. I have stated this position frequently and I hold to it firmly.

However, even though I have often expected returning brickbats from those who champion appointing judges and granting them life-tenure, almost nobody has seemed to ever take umbrage from or stated their agreement with my position until October 3, 2022

Then, voila, along came that great journalist and philosopher, Fareed Zakaria whose excellent Sunday morning CNN show, GPS The Global Public Square, is the only national news program I find to contain news. On October 3, 2022 at 8:00 p.m. Fareed aired his special, “Supreme Power, Inside the Highest Court in the Land.”

Now, Gentle Readers, I am not claiming, although I wish I could, that Dr. Zakaria has ever heard of, much less been influenced by my analysis on any subject. However, his special clearly stated one of the greatest current dangers to our democracy is life-tenured members of the U.S. Supreme Court and the totally politicized method of their selection process.

            Let me say this about that (as President John F. Kennedy used to say), AMEN, brother Fareed!

Our Two Branch Democracy

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Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

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